Family Offices Included as ‘Investment Advisers’ Under IPO Allocation Rule 5131(b)

On May 9, 2017, the Financial Industry Regulatory Authority, Inc. (“FINRA”) issued an interpretive letter (the “Letter”)[1] regarding its IPO allocation rule 5131(b) and its exception 5131.02(b) (the “IPO Allocation Rule”, or “Rule”).[2] As described below, the Letter includes family offices (“Family Offices”)[3] under exception 5131.02(b)’s meaning of “investment adviser,” with the practical effect of allowing broker-dealer accounts to avoid looking through to their beneficial owners where such beneficial owners are unaffiliated private funds managed by Family Offices, when making IPO Allocation Rule representations.

According to the guidance set forth in the Letter, funds invested in the broker-dealer account and managed by a Family Office must still satisfy 5131.02(b)’s other requirements, besides being managed by an Investment Adviser, in order to invoke the exception. [4]

Compliance With the Spinning Rule: The Broker-Dealer Making the Allocation May Rely on a Representation From Accounts Seeking an Allocation

Under the Rule, a FINRA-member broker-dealer is prohibited from allocating “new issue securities” to any account—which includes an investment fund or other collective investment vehicle—if an executive officer or director of a public reporting company or “covered non-public company”[5] has a beneficial economic interest (including the right to share in gains or losses) in the account, if any of the following are true: (i) the company is currently an investment banking client of the member; (ii) in the 12-month period prior to the allocation, the member received compensation from the company for investment banking services; (iii) the FINRA member expects to provide or be retained for investment banking services in the three-month period following the allocation; or (iv) the allocation is made on the condition that such executive officer or director, on behalf of the company, retain the member for performance of future investment banking services.

To facilitate compliance with the spinning prohibition, the Rule permits members to rely on written representations, obtained within the prior 12 months, from an account’s beneficial owners, attesting to the companies, if any, at which the beneficial owners serve as executive officers or directors (or attest that they are materially supported by persons holding such offices).

The Letter Provides Relief for Broker-Dealer Accounts That Are Owned, in Part or in Whole, by Collective Investment Vehicles Managed by Family Offices

Exception 5131.02(b) permits a FINRA member to rely upon a written representation, obtained within the prior 12 months, from an account that does not look through to the beneficial owners of any “unaffiliated private fund,” so long as such funds meet certain requirements, including being managed by an “investment adviser.”

FINRA notes in the Letter that Family Offices may perform equivalent functions to regulated investment advisers, including investing the assets of a pooled investment vehicle or providing other forms of investment advice. It continues that, while Family Offices are excluded from the definition of Investment Adviser set forth under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), the policy reasons for the Advisers Act’s exclusion are not at issue in the context of Rule 5131(b), and because unaffiliated private funds, managed by Family Offices, that otherwise meeting exception 5131.02(b)’s requirements are unlikely to be used for spinning, the exclusion is not carried into this context.